Indian Child Welfare Act
The Indian Child Welfare Act of 1978 (ICWA, enacted November 8, 1978 and codified at 25 U.S.C. §§ 1901–1963[1]) is a United States federal law that governs jurisdiction over the removal of American Indian children from their families in custody, foster care and adoption cases.
Long title
An Act to establish standards for the placement of Indian children in foster or adoptive homes, to prevent the break-up of Indian families, and for other purposes.
ICWA
November 8, 1978
It gives tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation. It gives concurrent, but presumptive jurisdiction over foster care placement proceedings for Native American children who do not live on the reservation.
Overview of ICWA[edit]
General[edit]
ICWA gives tribal governments a strong voice concerning child custody proceedings that involve Native children, by allocating tribes exclusive jurisdiction over the case when the child resides on, or is domiciled on, the reservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans' foster care placement proceedings.[2]
History[edit]
ICWA was enacted in 1978 because of the disproportionately high rate of forced removal of Native children from their traditional homes and essentially from Native American cultures as a whole.[3][4] Before enactment, as many as 35 percent of all Native children were being removed, usually forcibly, mostly from intact Native American families with extended family networks, and placed in predominantly non-Native homes, which had no relation to Native American cultures.[5][6] In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove Native children and to place them with non-Native families and religious groups.[7]
Testimony in the House Committee for Interior and Insular Affairs showed that, in some cases, the per capita rate of Native children in foster care was nearly 16 times higher than the rate for non-Natives.[8] The tribes said that such removal demonstrated lack of understanding by child welfare workers of the role of extended families in tribal culture, and threatened tribal survival by removing children at such a high rate. The process also damaged the emotional lives of many children, who lost touch with their people and culture, as adults testified who had been through the process. Congress recognized this, and stated that the interests of tribal stability were as important as the best interests of the child.[9] One of the factors in this judgment was a recognition that, because of the differences in culture, what was in the best interest of a non-Native child was not necessarily what was in the best interest of a Native child. The latter traditionally have larger extended families and tribal relationships in their culture.[10]
As Louis La Rose (Winnebago Tribe of Nebraska) testified:
Legal Challenges[edit]
Adoptive Couple v. Baby Girl (2013)[edit]
The US Supreme Court issued a decision pertaining to the ICWA in the case Adoptive Couple v. Baby Girl, on June 25, 2013. In a 5-4 opinion delivered by Justice Samuel Alito, the Supreme Court held that the heightened standard of deferring to tribal jurisdiction, required under § 1912(f) of ICWA does not apply when the parent in question never had physical or legal custody of the child. The Court ruled that Dusten Brown, a Cherokee man, "could not rely upon the language of a federal statute, the Indian Child Welfare Act, to protect himself against the termination of his parental rights over his daughter, Veronica, after another couple sought to adopt her."[71] The Court remanded the case to the South Carolina State Supreme Court, which had ruled that the father should be given custody under ICWA.
South Carolina was ordered to review the facts of the case under the new standard limiting the father's rights. The Court's majority decision did not address the fact that the girl's mother, who is not Native American, had attempted to hide the proposed adoption from the father, who sought custody as soon as he learned about it. The couple seeking to adopt the girl failed to notify the father for four months after filing papers to complete the action.[71] Brown sought to block the adoption and gain custody of his daughter, actions supported by the two South Carolina state courts that had reviewed the case. They ruled that his "waiver of his parental rights was invalid ... because the adoptive couple 'did not follow the clear procedural directives' of the federal law."[72]
In re Alexandria P.[edit]
In 2017 the Supreme Court declined to intervene in settling jurisdiction in the case of a Choctaw girl who had been placed in foster care with a non-Indian family in California after her natural parents were unable to care for her, ending nearly six years of litigation. The couple tried to adopt the girl, in violation of state laws and the ICWA, although the state and courts had warned them that the Choctaw Nation of Oklahoma had jurisdiction and that the goal of family reunification was paramount. The couple was represented by an attorney who has challenged tribal jurisdiction in other ICWA cases. The couple refused to release the girl in 2016, despite a court order, and the state had to remove her, to much publicity.[73]
The girl's father and other relatives had fought the adoption, and the state of California supported them and the tribe in placing the girl with Choctaw relatives. The girl was placed with relatives in Utah, who were raising two of her biological sisters.[73]
Haaland v. Brackeen[edit]
Haaland v. Brackeen was a Supreme Court of the United States case brought by the states of Texas, Louisiana, and Indiana, and individual plaintiffs, that sought to declare the Indian Child Welfare Act (ICWA) unconstitutional. In June 2016, a 10-month-old Navajo boy was placed with Chad and Jennifer Brackeen, a former civil engineer and an anesthesiologist, respectively, after his Navajo mother (who lived in Texas) was found to be using drugs.[74] The father of the child is Cherokee. In 2017 a Texas state court terminated the parental rights of both the biological parents.[fn 1][75] Under the provisions of the ICWA, the Navajo Nation stepped in and sought to place the child with a Navajo family, but that failed and the Brackeens were allowed to adopt the child.[76] The Brackeens later attempted to adopt the boy's sister in state court, but the girl's extended family also sought to take in the girl.[77] The Brackeens then filed suit in federal court to overturn the ICWA on the grounds of racial discrimination.[78] This approach would "completely erase [...] tribal sovereignty" according to Lauren van Schilfgaarde, a tribal sovereignty advocate.[fn 2][80]
On November 7, 2019, the Fifth Circuit, at the request of one of the judges, ordered that the case be heard en banc.[fn 3][83] Once ordered, 486 Indian tribes, 59 American Indian organizations, and 26 states filed amicus briefs in support of the constitutionality of the ICWA.[84] On January 22, 2020, the Court heard oral arguments.[85] On April 6, 2021, the court issued a per curiam opinion that summarized the primary opinions of Judge Dennis or Judge Kyle Duncan.[86] The court unanimously ruled that at least one party had standing to bring the suit,[87] and a majority held that Congress had the authority to enact the ICWA.[88]
Following the en banc decision of the Fifth Circuit Court, the United States, the State of Texas, the Cherokee Nation, and the Brackeens all petitioned the Supreme Court for a writ of certiorari. On February 28, 2022, the Court granted all four petitions.[fn 4][89] The Supreme Court consolidated the other three cases into Deb Haaland, Secretary of the Interior, et al. v. Chad Everet Brackeen, et al., allotting one hour for oral argument. All four cases dealt with the same basic subject matter, but from the perspective of each individual appellant, and it is a more efficient use of the Court's time to hear them at the same time.
Oral arguments for the case were heard on November 9, 2022. Many legal experts anticipated the Supreme Court would overturn or limit ICWA in response to this case.[90]
On June 15, 2023, in a 7–2 vote, the Supreme Court affirmed the Fifth Circuit Court's decision, upholding the ICWA in full. Justice Amy Coney Barrett wrote the opinion for the Court, reaffirming the ICWA's consistency with Congress' authority per Article I of the U.S. Constitution. Justices Clarence Thomas and Samuel Alito dissented on grounds that the ICWA infringed state sovereignty.[91][92]
In the American University Law Review; Washington Vol. 72, Iss. 5, Kathryn Fort wrote "The Road to Brackeen: Defending ICWA 2013-2023 in 2015."[93]
Representation in popular culture[edit]
Barbara Kingsolver's 1993 novel Pigs in Heaven explores the aftermath of the adoption of a Cherokee child by a non-Native parent under emergency conditions. It also looks at related issues among the people of her tribe, the history of ICWA, and its effects through other characters. It also explores ICWA in terms of tribal jurisdiction over Native American children, and issues for potential adoptive parents.[94]